Davignon v. Clemmey
| Citation | 176 F.Supp.2d 77 |
| Decision Date | 07 November 2001 |
| Docket Number | No. 99-11875-WGY.,99-11875-WGY. |
| Parties | Neal DAVIGNON, Patricia Kelley, Amanda Davignon, and Chelsea Davignon, Plaintiffs, v. Karl D. CLEMMEY, Karl D. Clemmey, Jr., Clemmey, Inc., and Clemmey Auto Company, Inc., Defendants. |
| Court | U.S. District Court — District of Massachusetts |
Sol J. Cohen, Somerville, MA, Leonard H. Kesten, Brody, Hardoon, Perkins & Kesten, Boston, MA, John P. LeGrand, John P. LeGrand & Associates, PC, Somerville, MA, Andrea W. McCarthy, Brody, Hardoon, Perkins & Kesten, Boston, MA, Michael R. Pizziferri, Boston, MA, for Plaintiffs.
Harvey A. Schwartz, Rodgers, Powers & Schwartz, Bruce F. Smith, Jager, Smith & Stetler, Michael J. Traft, Carney & Bassil, Boston, MA, for Defendants.
MEMORANDUM AND ORDER ON POST-TRIAL MOTIONS
A jury found the individual defendants liable for assault and battery, intentional infliction of emotional distress, and violation of the Massachusetts Civil Rights Act, Mass. Gen. Laws ch. 12, § 11I. The jury's award totaled $4,850,000.00. This memorandum addresses the defendants' post-trial motion to set aside or reduce the verdict, and the plaintiffs' petition for attorneys' fees and costs.
The individual defendants are Karl Clemmey and his son, "Dan" Clemmey (together, the "Clemmeys"). Karl Clemmey owns real estate and an auto shop in Mansfield, Massachusetts. The plaintiffs are Neal Davignon and Patricia Kelley (together, the "Davignons"), along with their children Amanda and Chelsea (collectively, the "Davignon family"). Neal Davignon worked in the Clemmeys' auto shop. The Davignon family lived in a house supplied by Karl Clemmey. When the employment relationship turned sour, so did the landlord-tenant relationship. And then it got ugly.1
Most of the panoply of fisticuffs, arguments, calls to the police, letters from lawyers, civil actions, criminal actions, and general unpleasantries is not germane to this discussion. Only the following is pertinent: In January 1998, Karl Clemmey (or more precisely, a trust created by Karl Clemmey) brought an action for summary process in the Southeast Division of the Massachusetts Housing Court to evict Neal Davignon and Patricia Kelley for failure to pay rent. Over the next several months, the Clemmeys terrorized the Davignon family, stalking them, strewing trash over their front yard, breaking windows, making a variety of false criminal claims, and even going so far as to attempt to have the Davignon children separated from their parents upon spurious child abuse claims.
In July 1998, the litigants entered into an agreement for judgment in the Housing Court litigation, but only after Neal Davignon and Patricia Kelley had brought counterclaims against Karl Clemmey for intentional infliction of emotional distress. Pursuant to the agreement, the Davignon family quit the house in Mansfield. They moved to Rhode Island. More than a year went by. Then the Davignon family brought this diversity action in federal court, based on the terror they had endured in Mansfield.
The case went to trial in this Court and a jury awarded the Davignon family collectively $4,850,000.00. This aggregate award includes $350,000.00 to Neal Davignon as a result of an assault by Karl Clemmey, and $1,000,000.00 to Neal Davignon, $1,000,000.00 to Patricia Kelley, $1,250,000.00 to Amanda Davignon, and $1,250,000.00 to Chelsea Davignon against Karl and Dan Clemmey jointly and severally for intentional infliction of emotional distress and violation of the Massachusetts Civil Rights Act.
After the jury verdict, the plaintiffs petitioned for attorneys' fees and costs, and the defendants brought a motion seeking judgment notwithstanding the verdict, a new trial, remittitur, and enforcement of the earlier agreement for judgment in Housing Court. The Court held a hearing on September 13, 2001, and ruled on some of these issues from the bench. This memorandum sets forth the reasoning behind those rulings and addresses the issues left unresolved at the hearing.
This motion simply reiterates various procedural and evidentiary issues that the defendants raised at trial, which the Court thoroughly considered at that time. It adds nothing new. For this reason, the Court denied the motion from the bench.
So central is the role of the jury to the proper award of compensatory damages, Ciulla v. Rigny, 89 F.Supp.2d 97, 100-03 (D.Mass.2000), that motions for remittitur after a jury verdict ought rarely, if ever, be granted. It is true, however, that this is the largest civil injury tort verdict ever recorded in this session of the United States District Court.
From this fact defense counsel argues, referencing other cases with other fact patterns, that this Court ought exercise the power granted to it by Federal Rule of Civil Procedure 59 and unilaterally order a reduction in the verdict or a new trial. The Court notes, however, that the perceived abuse of the judicial remittitur power is coming under increased critical scrutiny by Congress, see S. Rep. 107-42, at 118 (2001) (), and legal commentators, e.g., Kevin M. Clermont & Theodore Eisenberg, Anti-Plaintiff Bias in the Federal Appellate Courts, 84 Judicature 128 (Nov.-Dec. 2000); Cynthia J. Cohen,2 Whatever Happened to the Seventh Amendment?, Boston B.J., Nov.-Dec.1991, at 17, 19.
Yet neither the uninformed pseudofactual comparison of disparate factual situations nor the general views of Congress and commentators has any direct bearing on the duty of this Court in the particular circumstances of this case. That duty is rationally and reflectively to consider whether the award is "grossly excessive, inordinate, shocking to the conscience of the court, or so high that it would be a denial of justice to permit it to stand," Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1161 (1st Cir.1996) (internal quotation marks omitted), or whether it "exceeds any rational appraisal or estimate of the damages that could be based upon the evidence before it," E. Mountain Platform Tennis, Inc. v. Sherwin-Williams Co., 40 F.3d 492, 502 (1st Cir.1994) (internal quotation marks omitted).
Under either formulation, the jury award here must stand. The case was fairly and professionally tried on both sides, without flamboyance or appeals to prejudice or sympathy. On the factual record, the Court is not shocked by the outcome. It must be remembered that the Clemmeys intentionally and maliciously sought to have the Davignon children separated from their parents. The emotional distress attendant upon such potential separation is compensable in Massachusetts both at common law and by statute. See Ferriter v. Daniel O'Connell's Sons, Inc., 381 Mass. 507, 413 N.E.2d 690 (1980) (), superseded by statute on other grounds as stated in Lijoi v. Mass. Bay Transp. Auth., 28 Mass.App.Ct. 926, 548 N.E.2d 893 (1990); Prince-Jackson v. Children's Hosp. Med. Ctr., No. 72769 (Mass.Super.Ct. Apr. 8, 1985) (); see also Mass. Gen. Laws ch. 231, § 85X ().
In the face of this clearly established public policy in Massachusetts, it would constitute judicial hubris for a federal court to take away the careful evaluation of the jury here. For these reasons, the Court denied the motion for remittitur from the bench.
As noted above, in January 1998, Karl Clemmey, as trustee of the 360 Chauncy Street Realty Trust, commenced summary process eviction proceedings in the Massachusetts Housing Court for the Southeast Division against Neal Davignon and Patricia Kelley. The Davignons responded with counterclaims. Six months later, on June 8, 1998, the Davignons added 360 Chauncy Street LLC (the "LLC") and Karl Clemmey, among others, as defendants in counterclaim. Defs.' Mem. Ex. A. The Davignons included the following counterclaims:
34. The defendants in Counterclaim ... 360 Chauncy Street, L.L.C. and Karl D. Clemmey, individually have intentionally or recklessly cause[d] the Plaintiffs in Counterclaim sever[e] emotional upset distress and anxiety.
35. The actions of ... Karl D. Clemmey, individually, have been outrageous and beyond the bounds of decent behavior in a civilized society. As a result of this, Plaintiffs in Counterclaim have been injured and hereby claim damages in such amount as may be proved at trial, plus interest on this amount at 12% calculated from the date of filing of this pleading.
Id. Ex. B. One month later, on July 11, 1998, Karl Clemmey and the LLC answered the Davignons' complaint. Nine days later, on July 20, 1998, the LLC and the Davignons entered into an agreement for judgment. The agreement does not specifically name or mention Karl Clemmey, but the agreement identifies the case number pertaining to the Davignons' counterclaims against Karl Clemmey and the LLC. Under the agreement, the LLC gained possession of the house but agreed to pay the Davignons for attorneys' fees and whatever moving expenses they incurred....
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